CAPÍTULO II. ENERGÍAS RENOVABLES
7. Minicentrales hidroeléctricas y centrales de bombeo
The provisions of the Constitution of the Federal Republic of Nigeria are supreme to all other laws and have binding force on all authorities and persons throughout the country.41 The current Constitution in force in Nigeria is the 1999 Constitution
as amended, which came into force on 29 May 1999.42 2. Legislation
Both the Federal and State Governments have a legislative arm that has the power to make laws. The legislative power of the Federal Republic of Nigeria is vested by virtue of Section 4 (1) of the Constitution in the National Assembly of the Federation which consists of the House of Senate (Upper House) and the House of Representatives (Lower House). Section 4 (2) of the Constitution stipulates that “The National Assembly shall have powers to make laws for the peace, order and
38 Elias T O, The Nigerian legal system (London, Routledge & Paul 1963) 63 - 71.
39 Akintunde Olusegun Obilade, The Nigerian legal system (Sweet & Maxwell 1979) 45 - 49. 40 Yemisi Dina, John Akintayo and Funke Ekundayo, ‘Guide to Nigerian Legal Information’ (2005)
Globalex <http://www.nyulawglobal.org/globalex/Nigeria.html> accessed 24 April 2016.
41 Constitution (n 9) Section 1.
42 The Constitution was promulgated by Decree No. 24 of 1999. It came into force on 29 May 1999, the
day the current democratic dispensation commenced after more nearly two decades of military dictatorship.
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good government of the Federation or any part thereof…”43 There are one hundred
and nine (109) members of the Senate and three hundred and sixty (360) members of the House of Representatives.44 The laws made by the National Assembly are
called “Acts” and are applicable throughout the Federation (Federal Law).
The thirty-six federating states have a legislative arm known as the State House of Assembly. The legislative power of a State by virtue of Section 4 (6) of the Constitution is vested in the House of Assembly of each State. Section 4 (7) provides that ‘The House of Assembly of a State shall have powers to make laws for the peace, order and good governance of the State or any part thereof….’45 The
laws made by the House of Assembly of each federating state are applicable only to the territorial jurisdiction of the state - they are called “Laws”. The supremacy of the National Assembly (Senate and House of Representatives) over other legislative bodies in the country is captured in Section 4 (5) of the Constitution as follows:
Any law enacted by the House of Assembly of a State [that] is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.46
On several occasions in the past, Nigeria was governed by Military juntas. During the military regime, laws made by the Federal Military Government were referred to as “Decrees”, and those made by the State Military Administrators were referred to as “Edicts”. Nigeria has also experienced colonialism. From 1914 to 1960, Nigeria was a colony of Britain. The laws made by the colonial legislature were referred to as “Ordinances”.47
43 Constitution (n 9) Section 4 (2). 44 ibid Sections 48 and 49.
45 ibid Section 4 (7). 46 ibid Section 4 (5). 47 Yemisi Dina et al. (n 40).
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3. English (Common) Law
The common law tradition has its origin in England and found its way to former territories of the Commonwealth such as Nigeria.48 In the case of Kodeeswaran v.
Attorney-General of Ceylon, Lord Diplock noted that:
In the case of most former British colonies which were acquired by conquest or cession, the English common law is incorporated as part of the domestic law of the now independent State because it was imposed upon the colony…”.49
The reception of English law in Nigeria occurred through the process of legal transplant known as the “doctrine of reception”.50 Consequently, any statute of general application in force in England on or before 1 January 1900 became applicable in Nigeria on that date and became part of the law in force in the country. The common law, the doctrine of equity, statutes and subsidiary legislation on specified matters, and English law (statutes) applicable in Nigeria before 1 October 1960 (Nigeria’s Independence Day) are still applicable in independent Nigeria and continues to be in force unless repealed by the Federal Government.51 These laws can be amended, repealed, and replaced by the
legislature as it deems fit. According to Dina et al.:
The failure to review most of these laws, especially in the field of criminal law has occasioned the existence of what may be described as impracticable laws or legal provisions which are honoured more in breach than in observance.52
4. Customary Law
There are more than 300 ethnic groups in Nigeria, and ‘within these groups are distinctive subgroups and communities’.53 Each ethnic group has its own customs
and traditions that include their collectively held values, visual art, music and
48 John Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe
and Latin America (Stanford: Stanford University Press 1985) 3.
49 Kodeeswaran v. Attorney-General of Ceylon [1970] A C 1111 at page 1116.
50 Adefi M Olong, The Nigerian Legal System (2nd Revised ed. Malthouse Press Ltd 2007) 2. 51 Yemisi Dina et al. (n 40).
52 ibid.
53 Richard Olaniyan, Nigerian History and Culture (Addison-Wesley Longman Limited 1985) 48 - 61;
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dance forms, as well as their attire, cuisine, and language dialects.54 In one of his
numerous writings about the Igbo culture and tradition, Afigbe asserts that the Igbo people do not only value and respect their culture and tradition, but they hold them in high esteem. These have great influence on their way of life, on the way people interact with one another and with the society at large.55 Such is also observable among other ethnic groups. It is from these beliefs and practices of these customs and traditions that the customary laws of the people emanate. Hence, customary law was defined by Dina et al., as ‘a system of law that reflects the culture, customs, values and habits of the people whose activities it regulates’.56 Similarly,
Ehiribe described the customary law in Nigeria as ‘simply an amalgam of customs or habitual practices accepted by members of a particular community as having the force of law as a result of long established usage’.57 Although, the customary law
of a given community or ethnic group arises from their customs and traditional practices, not all their customary practices form part of their customary law. The difference between the customs and customary law of a community was captured by Olong as follows:
It is often the element of sanction and the fact that it is recognized as obligatory by its members that distinguish customary law from mere customs as not all customs are embodied in customary law nor is customary law made up entirely of the customs of a given community.58
Customary laws are largely unwritten and are ‘particularly dominant in the area of personal and family relations like marriage, divorce, guardianship and custody of children and succession’.59 However, its non-scripta attribute according to Olong,
‘is gradually fading away as widespread use of writing, legislative interference in traditional relations and the influence of court precedent’ is transforming the
54 Richard Olaniyan, Nigerian History and Culture (Addison-Wesley Longman Limited 1985); S
Ogudoro, ‘The culture of Ndigbo – part 1’ (2011). <http://enyi-oha-one-of- naiji.blogspot.ie/2011/04/culture-of-ndigbo-part-1.html> accessed 22 April 2016.
55 A E Afigbo, Ropes of Sands: Studies in Igbo History and Culture (Nsukka University press 1981) 1 -
31.
56 Yemisi Dina et al (n 40).
57 Ike Ehiribe, ‘The Validity of Customary Law Arbitration in Nigeria’ (1996) 18 The Comparative Law
Yearbook of International Business 131; Ese Malemi, The Nigerian Legal Method (2nd edn, Princeton publishing Co 2012) 25 - 36.
58 Adefi O Olong (n 50) 44. 59 Yemisi Dina et al., (n 40).
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natural characteristics of customary law.60 Customary law is and has always been
flexible and dynamic as opposed to being rigid.61 In Alfa v. Arepo, Judge Rufus stated that ‘customary law is not, however, a static law, the law can and does change with the times and the rapid development of social and economic conditions’.62 The consequence of codification of customary law is that it is robbed
of its inherent flexibility and dynamism since codification freezes it in both time and space. Furthermore, there have been legislative and judicial interventions ‘to modify and at times abrogate rules of customary law’.63 Thus, Section 26 (1) of
the High Court Laws of Lagos State provides that:
The high court shall observe and enforce observance of every customary law which is applicable and is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by implication with any law for being in force.64
Consequently, before the application of customary law by the courts, it has to pass a repugnancy test. In Ladepe v. Oyetunde, the court was of the view that the repugnance test was necessary to invalidate barbarous customs, especially those that are discriminatory and undermines the citizens’ human rights.65 Recently,
judicial activism in this regard was evident in the case of Mojekwu v. Mojekwu; the court held that any custom which discriminates against women and girls in the distribution of the property of their late father is repugnant to natural justice, equity, and good conscience.66 Hence, the customary practice obtainable in the
Igbo nation whereby women and girls were not allowed to inherit their father’s and/or husband’s property was struck down by the court. The Nigerian Supreme Court in the case of Ukeje v. Ukeje affirmed this decision and extended the rights of women and girls to inherit their late father’s and/or husband’s property, especially those located in the village.67 Customary laws are usually enforced in
60 Adefi O Olong (n 50) 46. 61 ibid.
62 Alfa v Arepo (1988) 2 NWLR pt.77, p.445 at 461 SC. 63 Yemisi et al. (n 17).
64 High Court Laws of Lagos State Cap 52 1973. 65 Ladepe v. Oyetunde (1944) AC 170.
66 Mojekwu v. Mojekwu (2004) NWLR 883. 67 Ukeje v. Ukeje [2014] LPELR-22724 (SC).
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customary courts, which is the lowest court in the hierarchy of courts.68 However,
they are equally enforced in higher courts through their enabling laws.69
Some customary law, customs and traditions exacerbate the perpetration of domestic violence through the continued enforcement of archaic beliefs and practices that discriminate and ignore some members of the society, especially women. Some of these practices include, disinheritance of women, bride-price payment, the gender value system, amongst others.70 The customary regulatory
authority (the Kings, Chiefs and Elders in a community) still views domestic violence as a private/family issue that does not warrant the intervention of outsiders. Hence, domestic violence at the customary level is mostly left unregulated.71
5. Islamic/Sharia Law
Sharia law, in most cases, is classified under the canopy of customary law in Nigeria.72 However, as Yemisi et al., opines, ‘it is better to accord Islamic law its distinct status as a separate source of law because of its peculiarities in terms of origin, nature, territorial and personal scope of application’.73 The Koran is the principle source of Islamic law known as “the Sharia”. ‘The Sharia contains the rules by which a Muslim society is organised and governed, and it provides the means to resolve conflicts among individuals as well as between the individuals and the state’.74 For Muslims, it ‘forms the basis for relations between man and
God, and between individuals whether Muslim or non-Muslim, as well as between a man and things which are part of creation’.75 Unlike customary law, it is written,
68 Yemisi et al. (n 40).
69 High Court Laws of Lagos State Cap 52 1973.
70 S C Ifemeje and N Umejiaku, ‘Discriminatory Cultural Practices and Women’s Rights among the Igbos
of South-East Nigeria: A Critique (2004) 25 Journal of Law, Policy and Globalisation 18; OECD, ‘Social institutions & development index, OECD development centre, Nigeria’ (2014) <http://genderindex.org/country/nigeria> accessed 6 May 2016.
71 R N Ozoemena, ‘African customary law and gender justice in a progressive democracy’ (LLM Thesis,
Rhodes University South Africa 2006) 35 - 38.
72 Ikenga K E Oraegbunam, ‘Nigeria, Sharia Praxis and National Integration: Any Lessons from the
Sudan Experience?’ (2014) 2 (4) Global Journal of Politics and Law Research 6.
73 Yemisi et al. (n 40).
74 Ngex, ‘Sharia Law in Nigeria’ (2013) <http://ngex.com/nigeria/sharia/> accessed 21 April 2016. 75 ibid.
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and its principles are relatively clearly defined.76 Sharia law has been in force in
some Northern parts of the country for decades. However, the scope of application of Sharia law has been broadened since it became part of the 1999 Constitution of Nigeria.77 Currently, twelve out of the nineteen Northern States in Nigeria have
adopted Sharia law as one of their sources of law.78 As Yemisi et al., averred, ‘The principal feature of this new development is the introduction of religious based criminal offences, especially on matters of morality and the introduction of punishments sanctioned by the Koran’.79 The adoption of Sharia law by some
states in the Northern part of the country has prompted debate and questions about ‘certainty of law, the supremacy of law (State laws and Sharia law), separation of state and religion, and strict standards of evidence and proof’.80
It appears there is a dearth of literature on the issue of domestic violence and the practice of Islamic religion in Nigeria. Many scholars chose to write about domestic violence without reference to any religion, especially Islam. However, literatures from around the world on the relationship between domestic violence and Islamic faith seems to differ on whether the practice of Islam encourages and/or supports domestic violence and vice versa.81 The argument mainly centres
on how different Muslim clerics and scholars interpret verse 34, Surah An-Nisa, in the Qur'an (which translates as follows: ‘Men are the protectors and maintainers of women…’ meaning, the man is responsible for the woman, and he is her maintainer, caretaker and leader who disciplines her if she deviates).82 There are
76 Abdulmumini A Oba, ‘Religious and Customary Laws in Nigeria, (2011) 25 Emory International Law
Review 882.
77 The Shaira legal system was introduced and given Constitutional recognition in Nigeria in the 1999
Constitution, which came into force on 29 May 1999.
78 The States in Nigeria that have adopted Sharia law are Zamfara, Jigawa, Bauchi, Gombe, Kaduna,
Katsina, Yobe, Niger, Kano, Sokoto, Kebbi, and Borno.
79 Yemisi et al. (n 40).
80 Hauwa Ibrahim and Princeton N Lyman, ‘Reflections on the New Shari’a Law in Nigeria’ (2004)
Prepared in cooperation with the Africa Policy Studies Program at the Council on Foreign Relations <
file:///C:/Users/Owner/Downloads/Reflections_on_the_New_Sharia_in_Nigeria.pdf> accessed 22 April 2016.
81 Edip Yuksel, ‘Beating Women, or Beating around the Bush, Or...’ Sisters in Islam
<http://www.sistersinislam.org.my/news.php?item.599.12> accessed 4 May 2017; Hajjar Lisa, ‘Religion, state power, and domestic violence in Muslim societies: A framework for comparative analysis’ (2004) 29 (1) Law & Social Inquiry 1.
82 Kecia Ali, ‘Muslim Sexual Ethics: Understanding a Difficult Verse, Qur'an 4:34’ Sisters in Islam
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contrasting opinions regarding whether the verse supports the battering of women.83 It is outside the purview of this thesis to engage in the debate. However, it is worthy to note that many Muslim countries have outlawed domestic violence, which indicates the determination of Islamic nations to combat it.84
6. International Law
Nigeria is a member of many regional and international bodies such as the United Nations, Commonwealth of Nations, and the African Union, among others. These bodies make laws in the form of treaties for various purposes including the protection of human rights and the facilitation of commercial transactions. Nigeria has ratified some of these treaties, but before any reliance can be placed on them as a source of law in the country, they need to be enacted into national law (domesticated) by the National Assembly pursuant to Section 12 (1) of the Constitution.85 Nigeria has a dualist perspective on the relationship between domestic law and international law. Consequently, international treaties do not automatically apply in Nigeria unless they have been incorporated into domestic law through an Act of the National Assembly. In Fawehinmi v. Abacha, the court stated that once the national assembly domesticates a treaty, it constitutes a commitment by the state to be bound by its provisions.86